Same-Sex Couple Blocked from Serving as Foster Parents Deserve Their Day in Court

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A federal district court today heard oral argument in the Trump administration’s effort to have Lambda Legal’s lawsuit against the U.S. Department of Health and Human Services (HHS) and the U.S. Conference of Catholic Bishops (USCCB) dismissed.

Lambda Legal filed the lawsuit on behalf of a married same-sex Texas couple that was denied the opportunity even to apply to serve as foster parents for refugee children by a USCCB affiliate because they did not “mirror the Holy Family.”

“Fatma Marouf and Bryn Esplin deserve the right and opportunity to tell their story in court,” Lambda Legal Staff Attorney Jamie Gliksberg said. “HHS here is trying to have it both ways, by funding an organization – USCCB – to perform a federal child welfare program using taxpayer dollars despite USCCB’s insistence in the grant that it would perform such services only in a way that discriminates based on the organization’s own religious beliefs, and then to claim HHS can’t be held responsible for that discrimination when it occurred. We hope the court will see through the smoke and mirrors.”

HHS funds the program that turned away Marouf and Esplin exclusively with federal taxpayer money through its Office of Refugee Resettlement (ORR). Specifically, HHS funded USCCB to perform federal child welfare services through its affiliates even though USCCB made clear that it would use the funds to deny such services to members of the public based on USCCB’s religious beliefs.

“The federal government was on notice when it funded USCCB that this organization refuses to provide services to same-sex spouses at taxpayers’ expense,” Gliksberg added. “HHS knew it and funded USCCB anyway. There should be only one criterion for placing foster children – what is in the best interests of the child. Placing children with stable, loving homes such as Fatma and Bryn’s should be the goal, but instead HHS authorized USCCB to use discriminatory criteria bearing no relationship to child welfare, all at the cost of children in federal care.”

Lambda Legal filed the lawsuit in February in the U.S. District Court for the District of Columbia. The lawsuit claims HHS and USCCB are violating the Establishment, Equal Protection and Due Process Clauses of the U.S Constitution by authorizing USCCB to discriminate on the basis of the organization’s religious beliefs in its provision of federal child welfare services.

USCCB, which receives millions of dollars in grant funding from HHS through ORR to provide child welfare services under the federal government’s Unaccompanied Refugee Minors (URM) and Unaccompanied Alien Child (“UC”) programs, is responsible for identifying eligible children in need of services and providing foster care services for these children, including placement in homes that serve their best interests.

Fatma Marouf and Bryn Esplin have been married for nearly three years. They both teach at Texas A&M University; Fatma is a Professor of Law and Director of Texas A&M’s Immigrant Rights Clinic, and Bryn is an Assistant Professor of Bioethics at Texas A&M College of Medicine. They have long wanted to have children, and, after administrators at a Fort Worth-based USCCB affiliate invited Fatma to visit and learn about the affiliate’s work with unaccompanied refugee children, they decided that they wanted to become foster parents for a refugee child and asked to apply to start the licensing process.

However, when Bryn and Fatma first revealed that they were a married same-sex couple, the affiliate’s Director of International Foster Care informed them that they would not be permitted to apply to be foster parents because their family structure did not “mirror the Holy Family.” And, when Fatma asked about LGBT refugee children in the organization’s care, the Director stated that none of the unaccompanied refugee children in its care were LGBT. Later that same day, Fatma emailed ORR to inform it that the USCCB affiliate had discriminated against her and her same-sex spouse by refusing to allow them to apply to foster a refugee child. ORR responded two months later to ask for the names of the officials with whom they met and Fatma and Bryn responded immediately with the requested information, but they have heard nothing since.

The Lambda Legal attorneys working on the case are: Jamie Gliksberg and Camilla Taylor. They are joined by pro-bono co-counsel Ken Choe, Jessica L. Ellsworth, Alali Dagogo-Jack, Jennifer A. Fleury, and James A. Huang of Hogan Lovells.